1.
A commercial practice shall be regarded as misleading if it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements, and in either case causes or is likely to cause them to take a transactional decision that they would not have taken otherwise:
(a)
the existence or nature of the product;
(b)
the main characteristics of the product, including its availability, benefits, risks, execution, composition, environmental or social characteristics, accessories, circularity aspects, such as durability, reparability or recyclability, after-sale customer assistance and complaint handling, method and date of manufacture or provision, delivery, fitness for purpose, usage, quantity, specification, geographical or commercial origin or the results to be expected from its use, or the results and material features of tests or checks carried out on the product;
(c)
the extent of the trader’s commitments, the motives for the commercial practice and the nature of the sales process, any statement or symbol in relation to direct or indirect sponsorship or approval of the trader or the product;
(d)
the price or the manner in which the price is calculated, or the existence of a specific price advantage;
(e)
the need for a service, part, replacement or repair;
(f)
the nature, attributes and rights of the trader or the trader’s agent, such as the trader’s or the agent’s identity and assets, qualifications, status, approval, affiliation or connection and ownership of industrial, commercial or intellectual property rights or the trader’s or the agent’s awards and distinctions;
(g)
the consumer’s rights, including the right to replacement or reimbursement under Directive (EU) 2019/771, or the risks that the consumer may face.
2.
A commercial practice shall also be regarded as misleading if, in its factual context, taking account of all its features and circumstances, it causes or is likely to cause the average consumer to take a transactional decision that they would not have taken otherwise, and it involves any of the following:
(a)
any marketing of a product, including comparative advertising, which creates confusion with any products, trademarks, trade names or other distinguishing marks of a competitor;
(b)
non-compliance by the trader with commitments contained in codes of conduct by which the trader has undertaken to be bound, where both the following conditions are fulfilled:
(i)
the commitment is not aspirational but is firm and is capable of being verified;
(ii)
the trader indicates in a commercial practice that the trader is bound by the code;
(c)
any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors;
(d)
making an environmental claim related to future environmental performance without clear, objective, publicly available and verifiable commitments set out in a detailed and realistic implementation plan that includes measurable and time-bound targets and other relevant elements necessary to support its implementation, including allocation of resources, and that is regularly verified by an independent third party expert, whose findings are made available to consumers;
(e)
advertising benefits to consumers that are irrelevant and do not result from any feature of the product or business.